An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-759


Filed: 20 April 2004


    v .                             Wake County
                                No. 01 CRS 104072

    Appeal by defendant from judgment dated 28 March 2002 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 3 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Edwin L. Gavin, II, for the State.

    Bryan Gates for defendant-appellant.

    BRYANT, Judge.

    Kenneth Edward Watts (defendant) appeals a judgment dated 28 March 2002 consistent with a jury verdict finding him guilty of possession of a firearm by a convicted felon pursuant to N.C. Gen. Stat. § 14-415.1.
    On 3 November 2001, members of the Raleigh Police Department executed a search warrant at 120 North Fisher Street. 120 North Fisher Street, a duplex unit, shared a common wall with 122 North Fisher Street, and both halves shared a common porch, divided only by a short see through railing, and a common yard. In order to secure the premises and protect the safety of officers executing the warrant, several officers were stationed outside the entire perimeter of the duplex.    Sergeant R.F. Holdsclaw was stationed near the kitchen door of unit 122 North Fisher Street. Looking through an open door at unit 122, Sergeant Holdsclaw observed a tall, slim, black male wearing dark clothing place some type of firearm on top of the refrigerator. Sergeant Holdsclaw immediately radioed the other officers, informing them that a firearm was present in unit 122. Sergeant Holdsclaw then went into unit 122 through the open door and seized the firearm. He, however, did not find anyone in the apartment.
    When exiting unit 122 through the front door, Sergeant Holdsclaw found Detective G.K. Baker had detained on the front porch a tall, slim, black male wearing dark clothing. Detective Baker stated that nobody else had come through the front door, and Sergeant Holdsclaw identified defendant as the person whom he had seen placing a firearm on the refrigerator.
    In his trial testimony, Detective Baker stated that around the time the officers were first securing the premises, and prior to detaining defendant, he saw defendant but was unable to determine whether defendant exited unit 120 or 122. If defendant had exited unit 120, the officers would have been required to detain him.
    Neither Detective Baker nor Sergeant Holdsclaw was certain whether defendant had any connection to unit 120, or whether defendant posed a danger to the officers' safety. Therefore, they continued to detain defendant and searched his person, finding a pocket knife and a small amount of cash. Both defendant and the seized firearm were taken to the police department. Defendant wassubsequently charged and later indicted for possession of a firearm by a convicted felon.


    The issues presented are whether: (I) the seizure of the firearm and detainment of defendant was justified; (II) the method used to measure the length of the barrel was improper; and (III) the trial court erred in excluding portions of defendant's testimony.

    First, defendant argues that police observation of a person laying down a firearm in a residence, for which the police did not have a warrant to search, did not justify the seizure of the firearm and detainment of defendant. We disagree.
    The governing premise of the Fourth Amendment is that a governmental search and seizure of private property, unaccompanied by prior judicial approval in the form of a warrant, is per se unreasonable, unless the search falls within an exception to the warrant requirement involving exigent circumstances. Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744 (1981); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968); Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576 (1967); accord State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979). Hence, when the State seeks to admit evidence discovered by way of a warrantless search in a criminal prosecution, it must first show how the former intrusion was exempted from the general constitutional demand for a warrant. Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685 (1969); United States v. Jeffers, 342 U.S. 48, 96 L. Ed. 59 (1951).
    A reviewing court must consider the totality of the circumstances in determining whether exigent circumstances exist. State v. Guevara, 349 N.C. 243, 250, 506 S.E.2d 711, 716 (1998). Each case turns on its own facts, and the court “'must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.'” State v. Watson, 119 N.C. App. 395, 399, 458 S.E.2d 519, 522 (1995) (quoting State v. Smith, 118 N.C. App. 106, 114, 454 S.E.2d 680, 685 (1995)). In Minnesota v. Olson, the United States Supreme Court specifically found exigent circumstances to exist when a situation involved a potential risk of danger to the police or others located inside or outside of the dwelling. 495 U.S. 91, 100, 109 L. Ed. 2d 85, 95 (1990).
    In the instant case, police were lawfully present at the duplex pursuant to a search warrant. As both halves of the duplex were joined by a common wall, it thus required officers to be stationed outside both sides of the duplex to (1) secure the premises, (2) lawfully detain any persons attempting to exit 120 North Fisher Street, and (3) protect the safety of the officers attempting to execute the warrant. Detective Baker saw defendant on the premises but could not determine from which half of the duplex defendant had exited. Defendant thereafter entered 122 North Fisher Street.
    Sergeant Holdsclaw viewed through an open door, a tall, slim,black male, who was wearing dark clothing, walk into the kitchen of 122 North Fisher Street, lay some type of firearm on the refrigerator, and then walk into the living room. Sergeant Holdsclaw immediately radioed the other officers that a firearm was present in 122 North Fisher Street, and proceeded into the unit through the kitchen door to secure the firearm. Sergeant Holdsclaw did not find anyone in the apartment. However, as Sergeant Holdsclaw walked out onto the front porch, he found that Detective Baker had secured defendant. Detective Baker stated that nobody other than defendant had walked through the front door, and Sergeant Holdsclaw identified defendant as the person whom he had seen laying a firearm on the refrigerator.
    During this time, other officers were in the process of securing several persons found in 120 North Fisher Street together with others stationed in a car parked in front of the duplex.
    In weighing the facts and circumstances of this case, the nature of the intrusion was justified by the need to secure the premises and protect the safety of the officers executing the warrant. Although the officers were unable to initially determine whether defendant was spotted at 120 North Fisher Street or 122 North Fisher Street, if defendant had been present at 120 North Fisher Street, he would have been subject to lawful detainment. Furthermore, defendant's movement on the premises effectively interfered with police efforts to secure the premises, and defendant's placement of the firearm on the refrigerator justified the officers' actions in detaining him and seizing the firearm. Moreover, the presence of numerous individuals stationed at different positions in and around the duplex property (defendant in Unit 122, others in Unit 120, and others in a car in the front of the property) created a potential safety risk to officers executing the search warrant. Accordingly, this assignment of error is overruled.

    Second, defendant argues prejudicial error occurred when the barrel of the firearm was measured after an attached muzzle break was removed, rather than being measured in the condition in which the firearm was seized. Because N.C. Gen. Stat. § 14-415.1 is silent as to the method that must be used in measuring a barrel, defendant argues that the statute must be interpreted in his favor.
    Special Agent David McAleer of the Bureau of Alcohol, Tobacco, and Firearms (ATF) testified that, to determine the length of the barrel, he removed the muzzle break and inserted a security strap into the barrel, a method taught in ATF training classes. If the muzzle break had been permanently attached, he would have included the length of the muzzle break in his measurement - a technique taught at the ATF training academy and is a generally accepted method.
    Our review of the transcript reveals that defendant presented only one objection during Agent McAleer's testimony, and that objection came after McAleer had already testified to the method he used to measure the length of the barrel. Moreover, defendant never moved to strike McAleer's testimony. Therefore, defendanthas failed to preserve this issue for appellate review. See State v. McCray, 342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (“It is well established that 'error may not be predicated upon a ruling which admits . . . evidence unless . . . a timely objection or motion to strike appears of record.'”) (citation omitted).

    Finally, defendant argues that the trial court erred in excluding defendant's testimony that the owner of 122 North Fisher Street (Marco Bailey) had told defendant the gun was in the shop being repaired. We disagree.
    The transcript reveals the following colloquy between defendant and defense counsel:
        Q.    Do you know whose gun that is, that rifle?

         A.    Marco's.

        Q.    Did you even know he had it in the house that day?

        A.    No.

        Q.    Where did you think it was?

        A.    In the shop being repaired.

        Q.    Why did you think it was in the shop being repaired?

        A.    Because the stock of the gun was broken, and he told me that he was taking it to the shop.

                MR. WILSON:    Objection, hearsay, your Honor.

                THE COURT:    Sustained.

        . . . .

        Q.    Mr. Watts, don't tell me what he said.
        A.    Okay.
        Q.    Just tell me where you thought the gun was?

        A.    In the gun shop being fixed.

                MR. RAND:    Your honor, we would like to offer the - - be heard on the assistant district attorney's objection to hearsay if I may. We're not offering it for the truth of the matter asserted, only for my client's state of mind of his belief of where the gun was, not for the truth of the matter asserted, that the gun would be - - was being taken to a repair shop, just to show that my client believed that it had been taken to a repair shop. Since it's not the truth of the matter asserted by the Court declaring whether or not it was going to be taken, I argue that it does not qualify as hearsay.

                THE COURT:    The objection remains sustained.

    Defendant argues the excluded testimony explains the reason he thought the firearm was being repaired, yet he fails to offer how the excluded testimony explains his reaction or state of mind upon receiving the information. The state of mind hearsay exception does not apply for the reasons defendant advocates.
    Further, because defendant was allowed to testify he thought the firearm was in the repair shop, he fails to show prejudice by the trial court's exclusion of testimony concerning why he thought the firearm was in the repair shop. This assignment of error is overruled.
    No error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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